Rights Written Out of New Indefinite Detention Law

On April 5, the Defense Department quietly sent a report to Congress indicating how it intends to implement a new law requiring lawyers and judges for detainees held in long-term U.S. military custody. As expected, DoD largely wrote the new rights out of existence, ensuring they’d be accorded to few, if any, detainees. What’s more, it severely limited the scope of judicial review even that small number will receive.

Originally intended to apply to the prisoners held by the United States at the Bagram Air Base in Afghanistan, Section 1024 of the National Defense Authorization Act is now more likely to apply to some future category of indefinite detainees held by the U.S. government. And therein lies the problem.

Just three months after President Obama signed the NDAA in December, the United States negotiated with Afghanistan to transfer most of the 3,200 detainees imprisoned at the Detention Facility in Parwan, as the U.S.-run prison at Bagram is called, to Afghan custody within six months. That transfer agreement doesn’t mention anything about what sort of review those detainees will get from the Afghan authorities — or, for that matter, whether they’ll get any sort of hearing at all. Because there isn’t an indefinite detention law in Afghanistan spelling out the grounds for detention or any entitlement for due process, those prisoners could end up stuck in an Afghan prison for many more years without charge or trial.